hypertension New Ao Presumptive

[Berta]

I foresee problems in the new Ischemic AO heart disease presumptive disability-

this case shows what I mean.

Veterans might sure need to rely on ECHO reports and documented Ejection Fractions-and other evidence of atherosclerotic heart disease because heart disease can have many types of names yet only the "ischemic" type is within the new AO presumptive addition.

"The Veteran's death certificate shows that he died from

congestive heart failure. The VA physician who wrote the VA medical opinion in April 2009 concluded that the Veteran's congestive heart failure was not due to ischemic heart disease or hypertensive vascular disease. However, he made no mention of the February 1986 private medical record showing nonspecific ST-T wave changes, the October 1986 chest X-rays showing arteriosclerosis, or the diagnoses of generalized arteriosclerosis and essential hypertension in January 1987. His opinion appears to have been based on an incomplete history, and it is not sufficient to rebut the presumption of service incurrence for atherosclerotic heart disease and hypertensive vascular disease. See 38 C.F.R. § 3.307(d). During the Veteran's lifetime, he was diagnosed as having arteriosclerosis and hypertension. Since atherosclerotic heart disease and hypertensive vascular disease (and their complications including congestive heart failure) are connected to service by presumption in light of the Veteran's POW status, and he died from congestive heart failure, service connection for the cause of the Veteran's death is warranted. Reasonable doubt has been resolved in the appellant's favor. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). ORDER Service connection for the cause of the Veteran's death is granted. From:http://www.va.gov/vetapp09/files3/0924239.txt

Edited October 17, 2009 by Berta

[Chuck75]

To contribute to the understanding of the debacle over ischaemic (ischemic) heart disease--

http://en.wikipedia.org/wiki/Myocardial_in...nd_risk_factors

http://en.wikipedia.org/wiki/Ischaemic_heart_disease

The heart is damaged. How,why? In this case, by loss of adequate blood flow. Cells of the heart actually die, and hopefully, are replaced with at least scar tissue.

While infections can also cause damage to the heart, The immune system and inflammatory reaction to the infection is the most likely culprit in the case of damage caused by an infection. (My opinion only)

CAD is the most likely direct cause worldwide, if you believe current information and study results.

In a previous comment, I mentioned that a heightened inflammatory reaction can be beneficial for a limited time. I neglected to mention why.

One facet that was obvious to me for years was an extremely rapid clotting and heal time of small cuts and other minor injuries.

If I was treated with generally used antibiotics, many infections would clear within a few hours or a day at most. (About 1/4 to 1/2 the time an average person would continue suffering from the same symptoms.)

In a very few instances (one in particular that I remember), A fairly severe and worry-some reaction occurred, resulting in an emergency room trip, and a shot of "the last resort" antibiotics usually reserved for surgical patients with serious complications. (I don't remember the name, other than part meant "gold" in Latin) Seems in this case, that one of the upper facial eruptions (cyst) ruptured inwards, causing an infection to spread, resulting in the upper part of my head swelling up in a matter of a few hours and a moderately high temperature for an adult. After the antibiotic shot, the swelling, pain, and disorientation started to subside within a couple of hours, and was completely gone in 12 hours, as if it never happened.

These days, the combination of various drugs I have to take negates the clotting and rapid healing effects, and places me at some risk for bleeding.

I talked to a vet today who was a RVN vet and I could not get it through his head that his heart attack might be presumptive for AO.

[Berta]

As I understand this-

with direct SC already for conditions that you feel were Section 1151 negligence-

and then with a successful FTCA claim-you could collect the full settlement from FTCA which could not be offset from your Section 1151 disability.

BUT the SF 95 MUST be filed within 2 years of your knowledge of the malpractice.

I am in same position- but this way-

made settlement with VA for wrongful death and I agreed to a five figure offset. 1997.

BVA in 2000 decision on a diffenet claim I had (PTSD contributing to CAD-denied but I already had the DIC award-

stated:

“On the other hand,if she ( meaning me) prevailed on the claim of service connection for the cause of the veteran's death, on the basis that his fatal illness(es) were related to military service or were secondary to or aggravated by service connected PTSD,it appears there would be no offset monies recovered under the Federal Tort Claims Act settlement and she could possibly be entitled to burial benefits.”

The BVA is correct and also this is borne out by Exhibit F, M21-1 Part IV Change 219 dated April 29,2005 :

Under Paragraph 22.07 OFFSET NOT APPLICABLE (enclosed)

(I copied this from letter I just sent to General COunsel Will Gunn.)

ALso I reiterated I am also due this offset as a retro DIC under the Nehmer COurt Order and dont care what they call ot- as long as they pay it.

This is the same reg you would come under- No offset under FTCA against a direct SC award.

The VA keeps stating I am eligible for both direct SC DIC and Sec 1151 SC DIC but as a lawyer from NVLSP agreeed with me (They won Nehmer) my direct SC trumps the 1151 and they owe me the offset under both of above regs.

BUT in your case-have you filed the FTCA yet?

I suggest filing this form with both your regional VA counsel and the OGC in DC.

They lose stuff just like the RO does.

I won FTCA without IMO or lawyer- I dont suggest you attempt that unless you can fully go toe to toe with the VACO docs and the VA lawyers.I used the VBM and studied all VA FTCA laws and regulations. I studied cardiology and some neurology as to vascular brain disease.I uncovered not only negligence at the local VA but also a cover up by VA doctors of that negligence at another VAMC.When my husband dropped dead,his own Section 1151 had to be re-opened by me.His own 1151 claim predicted his death and I had to find out how they did it.

I strongly suggest getting and FTCA lawyer and an IMO for all FTCA claims unless you have the time it takes to srudy the FTCA regs and the medical stuff.My FTCA took almost 3 years for settlement- maybe a lawyer could make your case go faster then that.

They have a point- why adjudicate a 1151 when you already get SC_

I thought they would pull that on me in 2003-

why claim SC DIC when I already get 1151 DIC-

but they didn't- direct SC trumps 1151 "as if" SC.

Another reason they will sit on your 1151 is -if the FTCA has already been filed.

Because if they DID award 1151 you could whip the award off to the OGC and the FTCA would be in the bag.

FTCA and 1151 are however separate issues and I recall the VA DC lawyer saying to me that we were at the 'cat and mouse' part when we began negotiations.He often chastised me for being so tough but I would just remind him VA killed my husband-and could have gotten away with that if I didnt study his med recs good-so I had to be tough.

The VA was the mouse. The cat caught them.

It was actually easier for me to succeed on my FTCA then on my other claims in some respects.

FTCA is so serious that at some point they have to read the evidence and I made sure they did.

M21-1 22.07 clearly states that direct SC comp (whether for same or different disability as FTCA)

clearly states that no money can be offset or withheld from Direct SC compensation and vice versa.

Edited November 14, 2009 by Berta

[sweeper68]

Yes I filed a SF-95 back in 2002 mailed (registered) VAOIG in DC. And they said it was sent to the VARO,I made further inquiries and was told they had no record of it ! Imagine that.. Anyway I was advised to submit another one and they signed for this one as well . Got a letter stating they got it and the name of the VA attorney to handle my claim and if I needed assstance to call her. Well I did call her and she was, let's say not very friendly or helpful ! I had entered the enemy's camp . so much for the friendly letter!! In fact they investigated the first FTCA claim and 1151 because it was evident that when I went to the Outpatient clinic afterwards some their employees let the cat out of the bag with their derogatory statements! Oh and it gets better when I contact a law firm that specializes in Malpractice claims under FTCA.. The attorney after hearing my situation tells me he had rather be talking to my widow and fluffs me off! After I render my opinion on his comment, I tell him where he can stuff it! As far as the IMO is concerned I have a written opinion from my private cardiologist stating what he would have done if I had presented to him with the my conditions, and it is much different than what the VMAC did.. I plan on visiting the enemy camp several more times before I am done.. And going Pro Se if need be ! I am pretty sure the VA snoops monitor this site and the cat and mouse game continues ..LOL Sweeper

[Berta]

OH= I wasn't sure if the SF 95 was filed.

Twenty NYS lawyers told me I had no basis for FTCA and would not help me so I went pro se too!

Glad I did-no legal fees to pay any lawyer-still many out there would want to help you I am sure- the problem is to get them to see some evidence before they turn anyone down.

"As far as the IMO is concerned I have a written opinion from my private cardiologist stating what he would have done if I had presented to him with the my conditions, and it is much different than what the VMAC did.. "

Does the OGC have that?

That is the basis for FTCA- did the VA treatment and/or diagnosis etc comply with standards found in the 'usual medical community.'?

What is the actual status of the FTCA?

BTW do NOT depend on the VAROP to send them what they need.

I got a FTCA denial from a head VA CArdiologist and I called her up (Stategic Health Team VACO) and asked her HOW she could have made the report I just got with the 6 page autopsy in the veteran's clinical record -that showed she was wrong-

I still hear her scream WHAT AUTOPSY!!!!!

The RO had destroyed all 12 copies I sent them so the VA OGC doctors would not have the most definitve evidence when they got the entire medical records and C file.

I faxed the autopsy and she immediately rendered a new opinion in depth that supported all of my malpractice charges except one charge.

Then the OGC called me to settle.

If the VA fails to diagnose and treat a disability that same way any medical professional would in the standard and usual medical community- and causes additional disability-that also is cause for FTCA case.

[sweeper68]

Yes the OIG has the IMO along with med reports stating coronary insuffiencies abnormal ekg, Reduced LV function. abnormal blood lipids and a goody bag of info on hyperglymedia, bad LDL and high triglicerides.and the risk of MI associated with these levels! Oh ! and I did not rely on the VARO for any sharing of medical records.As far the status on the FTCA, the second submission is probably sitting on someones desk. I plan on visiting the camp again and see what if anything is being investigated. That is why I am considering going ahead with the filing at Federal Circuit Court to force a response from them and to trigger the discovery process! And to add to the Ischemia discussion, I was diagnosed with Ischemia in early 96. No follow ups no treatment for blood level abnormalities.. So vets beware and don't rely on VA to properly diagnose issues concerning the heart or diabeties.. Sweeper

[Berta]

Sweeper-how long has it been since you got any correspondence from the OGC?

"Prior to presenting the FTCA claim in federal district court a claimant must either (1) receive an explicit denial by the VA within 6 months of the filing or (2) have the administrative claim constructively denied," 38 USC 2675 (a)

You can assume constructive denial if the VA fails to decide the claim within 6 months after date of the filing.

There could be a tolling time frame however for filing in a federal court.

If you have not heard from them in some time- they have probably constructively denied the claim- hard for me to say-however-

There is a lot to FTCA laws- found in 38 USC 2675 and 38 CFR 14.604-this is why it is best to get a lawyer unless a claimant has the time to thoroughly read these laws.